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Access to Justice and the Legal Profession in an Era of Contracting Civil Liability

Friday, October 27, 2017 • Fordham Law School

Colloquium Description:
For several decades, critics of the civil liability system – including corporate lobbyists – have successfully advocated for procedural and substantive reforms designed to limit plaintiffs’ ability to vindicate civil claims. They have pursued tort reform, class action reform, enhanced immunities, heightened pleading standards, diminished private rights of action . . . the list goes on and on. They have defended their efforts with the claim that civil litigation, including frivolous litigation, has “exploded” – a claim that others dispute.

Individually and collectively, these efforts have significantly undermined access to civil justice for individuals and communities, including particularly low-income individuals and communities of color, in ways that both implicate lawyers, judges and the legal profession and should call them to account. As Arthur Miller observed in a 2013 article reviewing recent Supreme Court procedural decisions hostile to civil plaintiffs:

"What I have described puts this nation’s longstanding legislative and judicial commitment to the private enforcement of its public policies and constitutional principles in harm’s way. . . . If the procedural rules are not receptive to lawsuits designed to vindicate the objectives of our constitutional and statutory policies, or if cases pursuing that end cannot be lodged in a convenient forum or survive a motion to dismiss, such cases will not be instituted and those policies will not be furthered. That is not what our procedural system . . . is designed to achieve. . . . I fear that some in the profession, both on the bench and in the practicing bar, have lost sight of the goals our procedural system should pursue. . . . [¶] Nor do I think it unfair to say that some Justices on the current Court and some members of the federal judiciary are disenchanted with civil litigation and wish to limit it, which, of course, negatively impacts access and works against those in our lower and middle economic classes who want entre to the civil justice system. That is an unfortunate echo of today's societal inequities and reflects the stunning disparity in power, people’s income, and status in our nation."

Similar observations might be made about substantive legislative reforms, such as state statutory limitations on tort liability or the 2005 federal bankruptcy reforms restricting individuals’ access to bankruptcy relief, and about judicial restrictions on constitutional and civil rights remedies. Various political efforts by business representatives to make state and federal legislators and judges more sympathetic to business interests have also been part of this story.